City of Fresno v. Superior Court
Decision Date | 31 March 1980 |
Citation | 163 Cal.Rptr. 807,104 Cal.App.3d 25 |
Court | California Court of Appeals Court of Appeals |
Parties | CITY OF FRESNO, a municipal corporation, Petitioner, v. SUPERIOR COURT OF California, COUNTY OF FRESNO, Respondent, Lylon H. LINDBECK, an Individual, Real Party in Interest. Civ. 5316. |
Petitioner City of Fresno and Parking Authority of the City of Fresno seek a writ of mandate and/or prohibition commanding respondent court to vacate its order relieving Lylon H. Lindbeck, real party in interest, from relief from the claims requirement of Government Code section 945.4.
On January 21, 1979, real party in interest, Lylon H. Lindbeck, was on a visit to Fresno. He drove to the Fresno Hilton Hotel and registered. While waiting for a Hilton elevator in the underground garage in an area prominently marked as reserved for guests of the Fresno Hilton Hotel, he was beaten and robbed.
On or before May 21, 1979, Lindbeck employed Donald K. Marshall, attorney at law, to represent him. Mr. Marshall maintained his office at Madera, California. On May 21, 1979, Mr. Marshall filed a complaint for personal injury seeking damages as a result of the assault that took place in the underground garage. Named as defendants were the Stephens Investment Company, dba Fresno Hilton Hotel, Does I through X, inclusive.
On July 23, 1979, Lindbeck filed a late claim with the City of Fresno. The claim was denied on August 7, 1979.
On October 22, 1979, Lindbeck through his new attorney, Michael H. Meyer, filed a "petition, and notice of hearing of petition for relief and claim requirement; points and authorities" in the Fresno Superior Court. On November 7, 1979, the petition was heard and granted.
Petitioner claims error in that there was an insufficient showing by Lindbeck of a factual basis to support the court's conclusion that Lindbeck's failure to file a timely claim was the result of mistake, inadvertence, and excusable neglect.
No claim had been presented to the City of Fresno or Parking Authority of the City of Fresno within 100 days of the assault and robbery as is required by section 911.2 of the Government Code. 1
After petitioner's request to file a late claim was denied, petitioner sought relief in the superior court of Fresno pursuant to section 946.6. The pertinent parts of section 946.6 to the issues on this hearing are:
There was only one affidavit presented on behalf of Lindbeck at the hearing, namely, the affidavit of his attorney Donald K. Marshall. There were no other affidavits filed nor any evidence presented to the trial judge, by either party. Subdivision (e) of section 946.6 above quoted makes clear the restrictions upon a judge in hearing and ruling upon such motions. Since the sworn affidavit was the only matter the judge could base his ruling on, it is set out in full.
The city concedes that it suffered no prejudice.
The complaint by Lindbeck was filed May 21, 1979, 120 days from the date of the injury. There was no competent evidence before the court as to when Mr. Lindbeck consulted his attorney. 2 It could have been before the statute had run or after it had run.
If it was after the statute had run clearly there was nothing before the court upon which the court could exercise its discretion, hence the writ must be granted. The case of El Dorado Irrigation Dist. v. Superior Court, supra, 98 Cal.App.3d 57, 159 Cal.Rptr. 267 is dispositive. In that case one Evans was injured and 120 days later he engaged a law firm for the purpose of filing a workers' compensation claim. Counsel's investigator learned that a public entity may be involved in a third-party claim. A late claim was filed and denied. The superior court granted relief pursuant to section 946.6. The appellate court issued a writ of mandate setting aside the order of the trial court granting relief.
The only evidence as to Evans' excusable neglect was a statement by the attorneys in their points and authorities as follows:
" 'It is reasonable that a lay person would not know of the existence of a claim against a governmental entity . . . .' " (El Dorado Irrigation Dist. v. Superior Court, supra, p. 59, 159 Cal.Rptr. at p. 268.)
At page 62, 159 Cal.Rptr. at page 270, the court goes on to say:
(Emphasis added.)
Assuming that Lindbeck did consult with his attorneys before the 100 days had run, this writ must still issue.
A court does not relieve a potential plaintiff of the claim requirements of section 945.4, as a matter of course; plaintiff must first demonstrate two essentials by a preponderance of the evidence (Shaddox v. Melcher (1969) 270 Cal.App.2d 598, 601-602, 76 Cal.Rptr. 80). First, it must be shown that the section 911.4 application was presented within a reasonable time, and second, that the failure to file a timely claim was due to mistake, inadvertence, surprise or excusable neglect. (Tammen v. County of San Diego (1967) 66 Cal.2d 468, 474, 58 Cal.Rptr. 249, 426 P.2d 753.)
The showing required as to mistake, inadvertence, surprise or excusable neglect in proceedings to file a late claim against a governmental agency is the same as required under section 473 of the Code of Civil Procedure for relieving a party from a default judgment. (Viles v. State of California (1967) 66 Cal.2d 24, 29, 56 Cal.Rptr. 666, 423 P.2d 818.)
In Clark v. City of Compton (1971) 22 Cal.App.3d 522, 528, 99 Cal.Rptr. 613, 616, the court said:
" ' " " (Clark v. City of Compton, supra, 22 Cal.App.3d 522, 528, 99 Cal.Rptr. 613, 616.) Excusable neglect is that neglect which might have been the act of a reasonably prudent person (attorney) under the same circumstances. (Black v. County of Los Angeles (1970) 12 Cal.App.3d 670, 675, 91 Cal.Rptr. 104.) A petitioner or his attorney must show more than he just failed to discover a fact until too late; they must establish that in the use of reasonable diligence they failed to discover it. (Black v. County of Los Angeles, supra, 12 Cal.App.3d 670, 677, 91 Cal.Rptr. 104.)
Turning to the facts, the only evidence before the trial court was the affidavit...
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